AI Structured Summary
Not yet generated for this judgment
Judgment
This application under Section 482 of the Code of
Criminal Procedure has been filed for quashing the order dated
15.03.2013 passed by the Chief Judicial Magistrate, Bhabhua,
Kaimur, in Complaint Case No.1000 of 2012 by which the learned
Magistrate after holding enquiry has found prima facie case against
the petitioner and others for the offence under Section(s) 406 and
420 Indian Penal Code .
Prosecution case as per the Complaint Petition, in
brief, is that the accused persons including the petitioner were
known to the complainant. They came to the house of the
complainant and made request to give him rupees fifty lacs as they have opened one institution in the name of Fine Indisales Pvt. Ltd.
They told the complainant that they require rupees fifty lacs for the
aforesaid institution and they will return the money within six
months. The complainant gave rupees fifty lacs to the accused on
06.01.2012. After six months, the complainant made demand. The
accused persons gave two cheques dated 08.06.2012 for rupees
twenty five lacs each drawn on ICICI Bank, Kanpur Branch. The
complainant deposited both the cheques in his account in the State
Bank of India, Chainpur. The complainant learnt on 16.07.2012 that
both cheques have bounced because there was no fund in the
account of the accused persons. The complainant went to enquire
from the accused persons then they refused to return money. They
also said that there is no proof of making payment of the aforesaid
amount by the complainant to the accused persons. It has been
alleged that intention of the accused was bad from very beginning.
During enquiry, complainant was examined on
Solemn Affirmation. Besides complainant, two other witnesses were
also examined, namely, Diwan Islam Khan (EW 1) and Babar Khan
(EW 2). The learned Magistrate after holding enquiry has found
prima facie case against this petitioner and others for the offence
under Section(s) 406 and 420 Indian Penal Code . As per the
complaint, this petitioner was Director of the aforesaid company.
Xerox copy of the two cheques, which were bounced, dated
08.06.2012, has been annexed as Annexure-6 series. It is mentioned
in the Return Memo of the bank that fund was insufficient and the
account had been frozen.
Heard learned counsel for the Petitioner and the
State as well as counsel for the Opposite Party No.2.
It has been submitted on behalf of the petitioner
that there is no proof of making payment of rupees fifty lacs by the
complainant to the accused.
Learned counsel for the petitioner has further
argued that prosecution against Director or authorized signatory of
the cheque without arraying the company as an accused is not
maintainable. He has relied on the judgments of the Hon''ble
Supreme Court in the case of Aneeta Hada Vs. Godfather Travels
& Tour (P) Ltd. reported in (2012) 5 Supreme Court Cases 661 as
well as in the case of Sunil Bharti Mittal Vs. Central Bureau of
Investigation reported in (2015) 4 Supreme Court Cases 609 in
support of his submission. Learned counsel for the petitioner after
relying on the judgment in the case of Sunil Bharti Mittal Vs.
Central Bureau of Investigation (supra) has argued that the
Magistrate issuing process under Section 204 Cr. P. C. against the
Director without ascribing any incriminating role to him, but solely
on the basis that their companies were accused and they being the
alter ego were vicariously liable without invoking any applicable
statutory scheme regarding vicarious liability is unsustainable.
Freedom of Magistrate is, however, to exercise power under Section
319 Cr. P. C., if warranted by the facts.
Similarly, counsel for the petitioner has relied on
the decision of the Supreme Court in the case of Harshendra Kumar
D. Vs. Rebatilata Koley reported in (2011) 3 Supreme Court Cases
351 and has argued that ex-Director cannot be made accountable and
fastened with liability for anything done by company after accepting
his resignation by the company.
Counsel for the State has submitted that there is no
illegality in the impugned order. The Magistrate is only required to
see prima facie case at the time of enquiry under Section 202 Cr. P.
C.
Having heard both the parties and from perusal of
the allegation in the Complaint Petition, it appears that Complaint
Petition has been filed by the complainant against this petitioner and
other accused persons making specific allegation that they came to
the complainant and requested them to pay rupees fifty lacs for
opening the institution with name Fine Indisales Pvt. Ltd. The
complainant paid the aforesaid amount on 06.01.2012 to the accused
because they were known to him from before and on assurance of
the accused persons that they will return the money within six
months, but the accused persons did not return the money within six
months. On demand by the complainant, they gave two cheques
dated 08.06.2012 to the complainant for rupees twenty five lacs
each. The complainant deposited those cheques in his account in
State Bank of India. The informant learnt on 16.07.2012 in his bank
that there is no fund in the account of which cheques have been
given by the accused persons.
Xerox copy of the cheques, which were given by
the accused persons to the complainant, has been annexed as
Annexure-6 series.
The petitioner and other accused persons have
approached the complainant in individual capacity for demand of
money to open the institution, namely, Fine Indisales Pvt. Ltd. and
the complainant paid the money to the accused persons in their
individual capacity for opening the aforesaid institution on promise
that they will return the money within six months, but money was
not returned and on demand the accused persons gave two cheques
to the complainant for rupees twenty five lacs each, which bounced
as no fund was available in the account on which cheques were
issued by the accused persons. In the case of Aneeta Hada Vs.
Godfather Travels & Tour (P) Ltd. (supra) relied by the counsel for
the petitioner, the cheque, which got bounced, was issued by the
Company and the main allegation was levelled against the
Company. In the instant case, from the Complaint Petition itself, it
appears that prior to formation of the Company, this petitioner and
others approached the complainant, and on their request the
complainant paid rupees fifty lacs to them on promise to return the
money within six months and on demand the accused persons gave
the complainant two chequs dated 08.06.2012 of rupees twenty five
lacs each, which got bounced. Therefore, this Court is of the view
that the facts and circumstances of the case relied upon by the
petitioner are totally different from the facts and circumstances of
this case.
The Hon''ble Supreme Court in the case of State
of Bihar Vs. Rajendra Agrawalla reported in (1996) 8 Supreme
Court Cases 164 has held that inherent power of the Court under
Section 482 of the Code of Criminal Procedure should be very
sparingly and cautiously used only when the Court comes to the
conclusion that there would be manifest injustice or there would be
abuse of the process of the Court, if such power is not exercised. At
that stage, it is not open for the Court either to sift the evidence or
appreciate the evidence and come to the conclusion that no prima
facie case is made out.
Similarly, in another decision in the case of Chief
Enforcement Officer Vs. Videocon International Ltd. reported in
(2008) 2 Supreme Court Cases 492, it has been held that object and
scope of enquiry under Section 202 Cr. P. C. is to ascertain whether
there is prima facie case against the accused. At that stage, the
Magistrate examines whether there is sufficient ground for
proceeding with the matter and not whether there is sufficient ground
for conviction.
In the instant case, from perusal of the impugned
order as well as allegation made in the Complaint Petition, this
Court finds that the learned Magistrate after looking into the
allegation in the Complaint Petition as well as Solemn Affirmation
of the complainant, statement of the two witnesses recorded during
enquiry has found that all the witnesses have supported the
allegation that the accused persons named in the Complaint Petition
had taken rupees fifty lacs with intention of cheating, and,
accordingly, found prima facie case is made out against the
petitioner and other accused persons for the offence under Section(s)
406 and 420 Indian Penal Code .
Therefore, this Court does not find any illegality
in the impugned order dated 15.03.2013 passed by the Chief Judicial
Magistrate, Bhabhua, Kaimur, in Complaint Case No.1000 of 2012
by which the learned Magistrate after holding enquiry has found
prima facie case against the petitioner and others for the offence
under Section(s) 406 and 420 Indian Penal Code .
Accordingly, the application is dismissed.
The petitioner is, however, given liberty to raise
all the points, as raised in the instant application, at the appropriate
stage of framing of charge in the Court below, which shall be
considered and disposed off by the learned Court below in
accordance with law.